Enemy Combatants

Michael Hayden, former Director of Central Intelligence, pens an Op-Ed in today’s Washington Post arguing that Umar Farouk Abdulmutallab—the underwear bomber—should have been treated as a “Enemy Combatant” rather than a criminal suspect after his capture on Christmas Day. Gen. Hayden’s piece highlights one of the most difficult and contentious issues raised by the on-going conflict between the United States and various militant Islamists organizations.

Strictly speaking, the law that governs international armed conflicts—International Humanitarian Law—admits only two categories of individual: combatants and non-combatants. Combatants can both kill lawfully and be lawfully killed. Additionally, they are immune from prosecution for lawful acts committed while engaging in hostilities. A non-combatant is anyone who isn’t a combatant; non-combatants are not legitimate targets except when they forfeit their immunity by engaging in a hostile act.

So, what is the underwear bomber? He is clearly not a combatant as the term is used in the Law of Armed Conflict: he was not a member of the armed forces of a State or de facto State, he was not openly bearing arms, nor had he distinguished himself from non-combatants with distinctive markings. Indeed, even were he a member of a State’s armed forces, he was engaged in an act of perfidy, forfeiting his combatant status. Yet, if he was a non-combatant he was one engaged in a hostile act. Engaging in a hostile act renders a non-combatant a legitimate target while he’s engaged in that act but not otherwise. If he is a non-combatant, then he is a non-combatant who was taken into custody on U.S. soil, no longer engaged in a hostile act, and should be subject to the civilian criminal justice system, as he has been.

Yet, this answer is unfulfilling. If, as Gen. Hayden describes, Umar Farouk Abdulmutallab is “the tip of the spear of a complex al-Qaeda plot to kill Americans in our homeland,” then it seems woefully insufficient to treat him as a civilian who has temporarily taken up arms and engaged in a hostile act. Perhaps the answer here lies in not slavishly adhering to the criterion that a combatant be a member of the armed forces of a State (or de facto State). But then, as a combatant, wouldn’t the underwear bomber be subject to the protections afforded Prisoners of War? And isn’t this answer just as unfulfilling—somehow extending too much honor to a fundamentally dishonorable bunch?

Make Them Do It

Karen Tumulty has been advocating for almost three years now that when faced with the threat to filibuster the majority party “make [the minority party] do it.” What gets Tumulty is that, for all the talk about filibusters, we don’t actually see any Senator take to the floor and talk without interruption for hours or days ala Mr. Smith Goes To Washington.

Every now and again there will be a report that, given Rule 22, you don’t have to filibuster to filibuster. That is, invoking a cloture motion is sufficient to spike a bill without refusing to yield the floor. While this has been true in practice for the last two decades or so, it is not strictly speaking true. Cloture is simply a motion to compel the cessation of debate, it is not necessary to invoke cloture to actually vote on a bill. Thus, failure of a cloture means that debate cannot be compelled to end but it does not mean that the bill in question does not come to the floor.

So, make them do it. If the Republicans want to be obstructionists—and, to be sure, they do—then let’s have them expend the political capital, time, and energy required to be the Party of No. All this would require is for the Democrats to schedule votes and maintain 51 Senators on the floor—a quorum. With a quorum, the Republicans would be forced to talk until exhaustion or until there was no longer a quorum to prevent a vote.

Forty Days Since Montazeri’s Death

Grand Ayatollah Ali Montazeri died forty days ago today. Traditionally, the deceased is memorialized on the fortieth day after his death. The cyclical forty day mourning period gave structure to the Iranian Revolution in 1979 and there had been hope that a similar structure might take shape in the wake of the violence following last summer’s election. Remarkably, while Montazeri’s death was accompanied by renewed, widespread demonstrations and violence, there have been no reports of demonstrations marking the fortieth day following his death.

In fact, the little news coming out of Iran today seems to suggest that the only people taking notice of Montazeri’s forty days are in the regime—and they have done so by executing two dissidents.

That said, the large protests following Montazeri’s death occurred seven days after he died, on the day of Ashura. Ashura itself commemorates the martyrdom of Hussein and a smaller commemoration usually occurs forty days hence. Perhaps today’s conspicuously absent protests will occur seven days hence, marking the fortieth day since Ashura.

SOTU DC Exile Edition

On the day of President Obama’s first State of the Union Address, I thought it would be a worthy (and self-indulgent) exercise to give my own SOTU. I also thought it would be a fitting end to a self-imposed hiatus. For you the reader that means a lengthy post talking about topics varied and diffuse. Enjoy. Or don’t.

My fellow Americans (and our small but loyal international readership) the state of the Union is shaky at best. We remain embroiled in two wars. Guantanamo Bay is still open and synonymous with punishment and shame. Our economy, no longer perched at the precipice of the cliff, remains inches from the edge of a calamitous fall. We don’t have global understanding on climate change. China has reasserted its most authoritative prerogatives. Radical Islam remains a virulent opponent of our version of liberty. These are the exogenous problems we face as a nation, and yet I believe they are not the worst problems we face. They are the by-products, the outcomes, of our own governmental dysfunction.

We face an extreme right movement that foments, indeed breeds on, fear, misinformation, and disdain for their fellow Americans. We face a loyal opposition held hostage by this movement that ignores reason, rejects or contorts facts, rendering impotent those of the opposition that would be guided by their better angels. We face a majority, in turn, held hostage by the “moderates” of their ilk, leaderless, lacking a uniformity of voice in change. Faced with this political environment with an opposition kowtowed by its own fringes and a majority crippled by its own ineffectual leadership, the work of the government has ground to a halt. The air of debate is noxious with claims, counterclaims, elusive facts, and putrid lies. What are we as a nation to do?

To the Democrats, and specifically President Obama, I implore you to lead. Two million people didn’t descend onto America’s front lawn last January to see such dithering one year on. They connected with a message of change and the majority of Americans are still hungry for change. The problem is that they haven’t seen any change. My critics will say that I’m wrong. That America has changed and that people want the change to stop, but that is nonsense. In an attempt to foster bi-partisanship the president and the leadership of his party has conceded time and again.

If you’re a Democrat, stop apologizing for that fact. If you believe 46 million of your countrymen and women that don’t have health insurance deserve it then say so and say it proudly. The Democrats have taken up a defensive posture demonstrated by the sound bite ready, but policy ridiculous spending freeze. I’ve been told that’s what you have to do to remain in power, but I challenge that notion. Leadership is how you remain in power. Sharing your ideas and your evidence with the electorate is how you remain in power. This leadership has to begin at the top. Talk straight with the American people. Advocate for tough policy choices and defend those choices as a matter of necessity and common sense.

To the Republicans, I implore you to come out from under the heel of the most venomous of those that lie along your fringes. The party of Lincoln has become the party of Limbaugh and Beck. You have a responsibility to this epublic to provide an opposition, but you also have an obligation to confront the misinformation that limits your own policy options. That confrontation shouldn’t take the form of a Friday evening press release. It should be a full-throated refutation of blatant lies, whether voiced by your opponents or members of your own camp.

If you are a Republican, come to the table in good faith and with new ideas. Your party has perfected obstructionism to the detriment of discourse. The American people deserve a proper discourse based in facts, over ideas, without deliberate misinformation. If elected members of your party do not agree with that statement then perhaps you should consider if they should be a part of your party.

That’s my wish list for the two primary political parties in America. That’s what I want to see from them, because neither party is doing much to govern America. What do I want to see from our elected officials on a national level this year (beyond, you know, action)? Here’s my policy wishlist:

· Pass healthcare reform, not so Dems can get a victory, not so Repos can suffer a defeat, but because 46 million Americans don’t have health insurance and the Senate version of the bill, rooted in private insurance models, would help a great majority of those Americans to be insured.

· For the next two years let the budget deficit be damned. We need to spend money in this country to restart the economy and while we might have avoided the worst, we still face over 10% unemployment. Hand wringing over the debt that is held and will need to be held by China is misguided. Yes, they hold a lot of our debt, but that is largely inconsequential because 1) the yuan is still pegged to the dollar and 2) they need us to buy their stuff to keep growing.

· Regulate the financial industry. I don’t know what this looks like but when banks becomes “too big to fail” we have to consider if that means they’re too big to exist in their present form. Government intervention is required for regulation because government intervention was required to bail out the unregulated.

· Continue the drawdown in Iraq while taking one last shot in Afghanistan. We have liberated Iraq and have done much to help them rebuild their nation. Most international affairs analysts would agree that a measure of victory has been achieved, so let’s get the hell out. Perhaps I’ll sound a bit jingoist, but leave Iraq to the Iraqis. In Afghanistan, this current surge should be our last shot at nation-building in the country. If we fail to gain traction with this attempt then our mission focus should be building strategic tribal alliances to more effectively facilitate the prosecution of small scale incursions against groups actively seeking to harm the United States.

· Continue reaching out to the less-hardened of our enemies. President Obama has done much to spread a message of respect for the rest of the world, including some of our traditional adversaries. He has been criticized because this has not paid immediate dividends. Diplomacy doesn’t work like combat. We took Baghdad inside of a week, but it has taken years to restore our image in the rest of the world to be considered a good faith partner. The pay offs will come with time. I’ll use a metaphor as we enter Super Bowl hype time. If you run your halfback off tackle and he’s stopped at the line, you don’t burn the play and never use it again. You come back to that play time and again because you know it will work with time.

These are five real goals our government can accomplish within the next year. They are goals that could find broad support in spirit and vigorous, respectful debate in application. All of us, all Americans, all global citizens need to approach the myriad of external problems we face without the internal rancor that has defined us. We have a responsibility to be reasoned in our opinions, respectful in our tone, and honest in our facts. In the face of those that would not abide be these tenets, we must be diligent and clear of mission to disregard those that would determine only to derail advancement. This is our obligation to the republic and to the world.

Ladies and gentlemen, the state of our Union is shaky at best, but the hands to secure its foundations are our own. The ideas that move us forward lie in our minds. The regard and respect for dissent is in our hearts. We can rally around what binds us or fracture at what divides us. Perhaps now, more than at any point in our history (save the Revolution and the Civil War) does our Union appear so strained and tenuous. Yet, our nation has witnessed a great many rebirths before. The moment is ours to share in triumph or lament in division and defeat.

So there you that it. My SOTU for what it’s worth. I welcome comments (Colin), and I’ll get out ahead of the first one. Every one of my policy recommendations is basically already a recommendation of the Democratic party. I am a Democrat, but I also think those prescriptions are right. If you disagree, tell me why.

More HC Process versus HC Substance Evidence

From the Massachusetts Special.

Passing the Bill

Colin and I have been going back and forth in comments here. Below is my argument for passage.

The crux of what I'm saying is: Healthcare reform is not unpopular; the healthcare reform process is unpopular. The two are difficult to disaggregate which is part of the reason why I discount the polls that say Healthcare reform is unpopular. Given the wide agreement that the healthcare system in this country is too expensive and broken to a greater or lesser degree, I think that the passing the bill and putting some reform in place may ex post facto render Healthcare reform popular. I may be wrong and, whether it becomes popular will depend on the ability of its proponents to present it convincingly in a popular light, but three things are true today: 1. The healthcare reform process is unpopular; 2. the duration of the healthcare reform process has hurt the Democrats politically; and 3. healthcare reform is necessary. If the Democrats are going to pay a political price regardless of its passage—and they will—then passing something, giving them the opportunity to change the conversation and demonstrate an ability to govern, is the better tactic.

UPDATE: David Plouffe writes in today's Washington Post:

[P]olitically speaking, if we do not pass [healthcare reform], the GOP will continue attacking the plan as if we did anyway, and voters will have no ability to measure its upside. If we do pass it, dozens of protections and benefits take effect this year. Parents won't have to worry their children will be denied coverage just because they have a preexisting condition. Workers won't have to worry that their coverage will be dropped because they get sick. Seniors will feel relief from prescription costs. Only if the plan becomes law will the American people see that all the scary things Sarah Palin and others have predicted -- such as the so-called death panels -- were baseless. We own the bill and the health-care votes. We need to get some of the upside.

Win, Lose, or Draw: Lessons from the MA Special Election

Massachusetts goes to the polls today in a special election to fill Sen. Ted Kennedy’s seat. To the great surprise of, well, everyone, this election is actually competitive. Scott Brown, a little known Republican State Senator—that phrase has been used so frequently in recent weeks that it can longer possibly be true—has given Martha Coakley a run for her money. Though at one time polls had Coakley up 30 points over Brown, FiveThirtyEight’s model now gives Brown 3:1 odds to be the victor.

Win or lose, Coakley’s campaign—like Deed’s campaign in Virginia last year—offers important lessons for the Democrats going into the midterm election. Unfortunately, without exit polls, it will be difficult to construct an extensive post-mortem on the campaign. However, it seems that we can already draw two lessons: 1) don’t take elections for granted; 2) Congress must get something done.

As to the first point, lest we forget Coakley is running to fill Ted Kennedy’s seat. In Massachusetts. And there is a very real possibility that she will lose. I don’t think it’s possible to overstate the importance of this point. The lack of intensity, the lack of campaigning, and the lack of focus on this race has let Scott Brown become the favorite to win. Clearly, if Democrats are vulnerable in Massachusetts, they are vulnerable anywhere. Were I the RNC, I would throw money at every Congressional race in the country coming out of today.

As to the second point, Democrats, it’s clear that we are going to sink or swim together. The last year has been a terrible example of our party’s inability to control the message. The American people appear to be frustrated with Congress’s performance and its seeming inability to get anything done. Stop playing to the Republican’s message that Democrats can’t be trusted to govern: put a healthcare bill on President Obama’s desk; confirm the outstanding administration appointees; speak in consonance as a caucus about the issues confronting the nation. Without both tangible results and a coherent defense of Congressional action for the next 10 months, the midterm election will be a disaster. We may be nostalgic for 1994 at the end of this cycle.

Tax Bank Size?

Ezra Klein suggests that banks should be taxed based on their size:

You could tax size, creating an enduring disincentive to become too-big-to-fail, and giving consumers a reason to favor small-enough-to-handle banks.

Thoughts?

Dispelling Yemeni Myths

Former US Ambassador to Yemen Edmund Hull injects some reality into the conversation.

“all those militant groups are cooperating more closely than ever”

In its report that Humam Khalil Abu Mulal al-Balawi—better known as the suicide bomber who killed 8 people at a CIA base in Afghanistan –appears in a video with Pakistani Taliban leader Hakimullah Mehsud, the New York Times suggests a “troubling possibility”:

But other militants allied with the Afghan Taliban factions and Al Qaeda claimed responsibility, too, leading to another troubling possibility: that all those militant groups are cooperating more closely than ever.

Cooperation between militant groups is certainly a possibility. Indeed, there are many disparate groups that are embroiled in the AfPak conflict who routinely take on Afghan or NATO forces—the Uzbek Islamist Movement is a good example of a non-Taliban, non-Al-Qaeda organization with its own goals but that cooperates with the Afghan and presumably the Pakistani Taliban.

And, while competing claims of responsibility may indicate cooperation, it seems more likely that the bombing of the CIA’s operating base in Afghanistan—given the coverage it has received and the nature of the target—is high profile success for which ever militant group that can lay claim to it. Such successes would likely raise the standing of the group responsible for it and may improve its ability to recruit fighters and garner support. Thus, the competing claims of responsibility are less indicative of cooperation than of the desirability to have owned the operation in question. Further, the ebullient praise that the suicide bomber levels on Baitullah Mehsud in the video in question buttresses the notion that the Pakistani Taliban is solely responsible for the bombing.

All Yemen, All the Time

Given the coverage of Yemen since the Christmas Day underwear bombing attempt, one could be forgiven for believing that Yemen is suddenly in the fore US security concerns, or that Yemen has just suddenly become unstable. The truth is, however, that Yemen has posed a significant security challenge to the United States for well over a decade—if not longer.

Aside from being the hiding place for the now infamous American-born Imam al-Alawi, Yemen was the sight of one of the earliest US predator strikes after 9/11. Yemen is also where the USS Cole was bombed in 2000.

More troubling, though, is that Yemen is fundamentally unstable. Just twenty years ago Yemen was still two separate states. Shortly after unification in 1990, civil war broke out and Yemen has remained—to greater or lesser extent—at war with itself since.

Despite significant US aid to Yemen over the last decade, the country has only become less stable. Despite covert US action against Al-Qaeda in Yemen, the country has only seen growth of that organization. The government of Yemen is waging a war against Houthi rebels in the north of the country, while Al-Qaeda is camped in the southern part of the country. Saudi Arabia has reportedly bombed Houthi rebel positions inside Yemen and there are unconfirmed reports that Saudi soldiers have crossed the border. Yemen is in a bad way and it’s getting worse.

So, what’s to be done? Clearly, Yemen is not a place to deploy US troops. Putting more US soldiers on the Arabian peninsula would only outrage the Muslim world. Further, it is unclear that US soldiers supporting President Saleh, an autocrat, would actually improve his position (and thereby our security)—to say nothing of American standing and moral authority. Nor is it clear that greater expenditures in foreign aid will improve

What is clear, though, is that instability remains a threat to US national security. Weak governments, unable to control their territory, and vulnerable, impoverished populations, provide ample opportunity for transnational organization to gestate. Al-Qaeda has demonstrated its willingness to take advantage of these opportunities: in Taliban-era Afghanistan, in the tribal region of Pakistan, and in Yemen. It is quite likely that even if the United States manages to oust or severely weaken Al-Qaeda in Yemen, that additional affiliates will grow and strengthen in the other nether-reaches of the planet—a likely environment sits just across the Gulf of Aden from Yemen in Somalia. US national security must focus both on confronting Al-Qaeda—through military or law enforcement means, as the situation dictates—and on confronting the ungoverned portions of the Earth. The United States should support those indigenous entities that manage to develop into putative States and governments—entities whose writ and legitimacy are frequently stronger than the recognized governments they stand in contradistinction to. US decision maker must become savvier and more sophisticated; they should not be easily convinced by regional powers that some putative State is really a front for Al-Qaeda when that regional power is pursuing its own ends.

Healthcare Reform Comparison

House staffers have put together a handy comparison of the House and Senate bills. You can view it here.

Soft on Communism

Throughout the Cold War, a favorite Republican political cudgel was to label Democrats as Soft on Communism. The argument, at bottom, was that Democrats could not be trusted with the national security of the United States because they did not recognize the dire threat posed by the Soviet Union and China. This attack, used for forty years, was wholly unfair and ignored the strong line Democrats repeatedly took against the Soviet Union—but it spoke to the voters and the Republicans used it to great effect.

And the Republicans have not discarded this line of attack with the demise of the Soviet Union. No, Democrats are no longer Soft on Communism, now they are Soft on Terrorism. Democrats do not take seriously the threat posed by Al Qaeda. Democrats do not consider the danger of terror attacks. Democrats want the terrorists to win. Democrats hate America.

The theme of these sorts of attacks emerged immediately in the aftermath of 9/11. The 2002 midterm elections were characterized by sweeping, unfounded attacks on Democrats along these lines. Despite becoming the object of ridicule by the middle of the decade, the line of attack has not yet died.

Since the failed Christmas Day underwear bombing, a panoply of Republicans have come reprised the Soft on Terrorism attack, directing it at the President. To characterize these attacks as cynical and inaccurate would be an understatement. In fact, a number of strong, independent rebuttals have appeared in places like the editorial page of today’s Washington Post.

But, while the Republican attacks in this vain are obscene and offensive, what concerns me is not their reemergence—sadly, this is just the nature of the modern, dishonest Republican party—but that the Pres. Obama walked into them. Like it or not, despite the horrendous mishandling of Afghanistan and US foreign policy under the previous administration, the Democratic party is still playing from a position of weakness when it comes to national security issues, including terrorism. As the leader of the Democratic party, President Obama and his administration should be aware that any misstep—real or perceived—will come back to haunt the Democratic party in 2010, 2012, and going forward so long as terrorism is a live issue. Thus, while I have all sorts of other problems with Pres. Obama taking a 10 day Hawaiian vacation for Christmas, his failure to cut short his vacation to return to Washington, DC is unforgivable—while true, it is clearly no effective political answer to point out that Pres. Obama’s reaction was similar (arguably more lively) than Pres. Bush’s reaction in the nearly identical Richard Reid incident in 2001.

While I generally applaud the job that Pres. Obama and his administration have done with foreign policy and national security, Pres. Obama cannot forget that the opposition party will cynically exploit any opportunity presented. Though it may be distasteful, it is their nature. What’s more, the Republicans have not played their cards close to their vest—it was clear from the outset of Pres. Obama’s administration that the Republican party would do their very best to undermine the President and capitalize on any opportunity presented. Here, the President’s reaction—or lack of reaction—to the Christmas Day underwear bombing has given the Republican Party plenty of ammunition to label Democrats as Soft on Terrorism.

Now, President Obama, fix the holes in the system, prosecute the would-be bomber, and get out in front of the next story.